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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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SECTION 1. Chapter 2, Code
of Criminal Procedure, is amended by adding Article 2.023 to read as
follows:
Art. 2.023. POLICY
REGARDING USE OF CERTAIN TESTIMONY. (a) In this article:
(1) "Attorney
representing the state" means a district attorney, criminal district
attorney, or county attorney performing
the duties of a district attorney.
(2) "Correctional
facility" has the meaning assigned by Section 1.07, Penal Code.
(b) An attorney
representing the state shall adopt a
written policy regarding the testimony of a person to whom a
defendant made a statement against the defendant's interest while the
person was imprisoned or confined in the same correctional facility as the
defendant and regarding how that
testimony may be used at the defendant's trial. The policy must require the
attorney representing the state to:
(1) implement a system to track the use of, and benefits
offered or provided in exchange for, testimony described by this article; and
(2) promptly disclose information regarding the testifying
person as required by Article 39.14(h-1).
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SECTION 1. Chapter 2, Code
of Criminal Procedure, is amended by adding Articles 2.023 and 2.32 to read
as follows:
Art. 2.023. TRACKING USE
OF CERTAIN TESTIMONY. (a) In this article:
(1) "Attorney
representing the state" means a district attorney, a criminal district
attorney, or a county attorney with
criminal jurisdiction.
(2) "Correctional
facility" has the meaning assigned by Section 1.07, Penal Code.
(b) An attorney
representing the state shall track:
(1) the use of proffered testimony of a person to whom a
defendant made a statement against the defendant's interest while the
person was imprisoned or confined in the same correctional facility as the
defendant, regardless of whether the
testimony is presented at trial; and
(2) any benefits offered or provided to a person in exchange for testimony
described by Subdivision (1).
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SECTION 2. Chapter 2, Code
of Criminal Procedure, is amended by adding Article 2.32 to read as
follows:
Art. 2.32. ELECTRONIC
RECORDING OF CUSTODIAL INTERROGATIONS. (a) In this article:
(1) "Custodial interrogation" means any investigative
questioning, other than routine questions associated with booking, by a
peace officer during which:
(A) a reasonable person in the position of the person being
interrogated would consider himself or herself to be in custody; and
(B) a question is asked that is reasonably likely to elicit an
incriminating response.
(2) "Electronic
recording" means an audio or audiovisual electronic recording that
begins at the time the person being interrogated enters the area of the
place of detention in which the custodial
interrogation will take place and that continues until the time the
interrogation ceases.
(3) "Place of
detention" means a police station or other building that is a place of
operation for a law enforcement agency, including a municipal police
department or county sheriff's department, and is owned or operated by the
law enforcement agency for the purpose of detaining individuals in
connection with the suspected violation of a penal law. The term does not
include a courthouse.
(b) A law enforcement
agency shall make an electronic recording of any custodial interrogation
that is of a person suspected of committing or charged with the commission
of a felony offense and that the law enforcement agency conducts in a place
of detention.
(c) An electronic
recording of a custodial interrogation that complies with this article is
exempt from public disclosure except
as provided by Section 552.108, Government Code.
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Art. 2.32. ELECTRONIC RECORDING
OF CUSTODIAL INTERROGATIONS. (a) In this article:
(1) "Electronic
recording" means an audio or audiovisual electronic recording that
begins at the time the person being interrogated enters the area of the
place of detention in which the interrogation will take place and that
continues until the time the interrogation ceases.
(2) "Place of
detention" means a police station or other building that is a place of
operation for a law enforcement agency, including a municipal police department
or county sheriff's department, and is owned or operated by the law
enforcement agency for the purpose of detaining individuals in connection
with the suspected violation of a penal law. The term does not include a
courthouse.
(b) A law enforcement agency
shall make an electronic recording of any custodial interrogation that is
of a person suspected of committing or charged with the commission of a
felony offense and that the law enforcement agency conducts in a place of
detention.
(c) An electronic
recording of a custodial interrogation that complies with this article is
exempt from public disclosure as provided by Section 552.108, Government
Code.
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SECTION 3. Article 38.075,
Code of Criminal Procedure, is amended by adding Subsection (c) to read as
follows:
(c) Notwithstanding Rules 404 and 405, Texas Rules
of Evidence, evidence of other crimes, wrongs, or acts committed by, and information described by Article
39.14(h-1) regarding, a person who gives testimony described by
Subsection (a) shall be admitted
for its bearing on relevant matters,
including the character of the person.
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SECTION 2. Article 38.075,
Code of Criminal Procedure, is amended by adding Subsection (c) to read as
follows:
(c) Evidence of a prior offense committed
by
a person who gives
testimony described by Subsection (a) may
be admitted for the purpose of
impeachment if the person received
a benefit described by Article 39.14(h-1)(2) with respect to the offense,
regardless of whether the person was convicted of the offense.
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SECTION 4. Sections 3(a) and
(c), Article 38.20, Code of Criminal Procedure, are amended to read as
follows:
(a)
Each law enforcement agency shall adopt and [,] implement [,
and as necessary amend a detailed written policy regarding the
administration of photograph and live lineup identification procedures in
accordance with this article. A law enforcement agency may adopt:
[(1)]
the model policy adopted under Subsection (b)[; or
[(2)
the agency's own policy that, at a minimum, conforms to the requirements of
Subsection (c)].
(c) The model policy [or any other policy adopted by a law
enforcement agency] under Subsection (b) [(a)]
must:
(1) be based on:
(A) credible field,
academic, or laboratory research on eyewitness memory;
(B) relevant policies,
guidelines, and best practices designed to reduce erroneous eyewitness
identifications and to enhance the reliability and objectivity of
eyewitness identifications; and
(C) other relevant
information as appropriate; and
(2) address the following topics:
(A) the selection of photograph and live lineup filler
photographs or participants;
(B) instructions given to a
witness before conducting a photograph or live lineup identification
procedure;
(C) the documentation and preservation of
results of a photograph or
live lineup identification procedure, including the documentation of
witness statements, regardless of the outcome of the procedure;
(D) procedures for administering
a photograph or live lineup identification procedure to an illiterate
person or a person with limited English language proficiency;
(E) for a live lineup
identification procedure, if
practicable, procedures for assigning an administrator who is
unaware of which member of the live lineup is the suspect in the case or alternative procedures designed to prevent
opportunities to influence the witness;
(F) for a photograph
identification procedure, procedures for assigning an administrator who is
capable of administering a photograph array in a blind manner or in a
manner consistent with other proven or supported best practices designed to
prevent opportunities to influence the witness; and
(G) any other procedures or
best practices supported by credible research or commonly accepted as a
means to reduce erroneous eyewitness identifications and to enhance the
objectivity and reliability of eyewitness identifications.
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SECTION 3. Section 3,
Article 38.20, Code of Criminal Procedure, is amended by amending Subsection
(c) and adding Subsection (d) to read as follows:
(c) The model policy or any other policy adopted by a law
enforcement agency under Subsection (a)
must:
(1) be based on:
(A) credible field,
academic, or laboratory research on eyewitness memory;
(B) relevant policies,
guidelines, and best practices designed to reduce erroneous eyewitness
identifications and to enhance the reliability and objectivity of
eyewitness identifications; and
(C) other relevant
information as appropriate; and
(2) include [address] the following information regarding evidence-based practices [topics]:
(A) procedures for selecting [the selection of] photograph
and live lineup filler photographs or participants to ensure that the photographs or
participants:
(i) are consistent in appearance with the description of the
alleged perpetrator that was provided by a witness; and
(ii) do not make the suspect noticeably stand out;
(B) instructions given to a
witness before conducting a photograph or live lineup identification
procedure that must include a
statement that the person who committed the offense may or may not be
present in the procedure and that the investigation will continue
regardless of whether the witness identifies a person in the procedure;
(C) procedures for documenting and preserving the [documentation and preservation of]
results of a photograph or live lineup identification procedure, including
the documentation of witness statements, regardless of the outcome of the
procedure;
(D) procedures for
administering a photograph or live lineup identification procedure to an
illiterate person or a person with limited English language proficiency;
(E) for a live lineup
identification procedure, [if
practicable,] procedures for assigning an administrator who is
unaware of which member of the live lineup is the suspect in the case [or alternative procedures designed to
prevent opportunities to influence the witness];
(F) for a photograph
identification procedure, procedures for assigning an administrator who is
capable of administering a photograph array in a blind manner or in a
manner consistent with other proven or supported best practices designed to
prevent opportunities to influence the witness; and
(G) any other procedures or
best practices supported by credible research or commonly accepted as a
means to reduce erroneous eyewitness identifications and to enhance the
objectivity and reliability of eyewitness identifications.
(d) A witness who makes an identification based on a photograph
or live lineup identification procedure shall be asked immediately after
the procedure to state, in the witness's own words, the witness's level of
confidence in making the identification. A law enforcement agency shall
document in accordance with Subsection (c)(2)(C) any statement made under
this subsection.
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SECTION 5. Section 4(b),
Article 38.20, Code of Criminal Procedure, is amended to read as follows:
(b) Not later than September
1 of each even-numbered year, each law enforcement agency shall adopt
the updated model policy as modified by the institute under Subsection (a)
in the preceding year [review its policy adopted under this article
and shall modify that policy as appropriate].
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No
equivalent provision.
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SECTION 6. Section 5,
Article 38.20, Code of Criminal Procedure, is amended to read as follows:
Sec. 5. (a) Any evidence or
expert testimony presented by the state or the defendant on the subject of
eyewitness identification is admissible only subject to compliance with the
Texas Rules of Evidence. Except as provided by Subsection (c), evidence
[Evidence] of compliance with the model policy [or any other policy] adopted
under this article [or with the minimum requirements of this article]
is not a condition precedent to the admissibility of an out-of-court
eyewitness identification.
(b) Notwithstanding Article
38.23 as that article relates to a violation of a state statute and
except as provided by Subsection (c), a failure to conduct a photograph
or live lineup identification procedure in substantial compliance with the
model policy [or any other policy]
adopted under this article [or with the minimum requirements of this
article] does not bar the admission of eyewitness identification
testimony in the courts of this state.
(c) If a witness makes an
in-court identification of the accused, the eyewitness identification is
admissible into evidence against the accused only if the evidence is
accompanied by:
(1) the details of any
prior identification made of the accused by the witness, including the
manner in which that identification procedure was conducted; and
(2) evidence showing the
witness's confidence level as described by the witness at the time of the
prior identification.
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SECTION 4. Section 5,
Article 38.20, Code of Criminal Procedure, is amended to read as follows:
Sec. 5. (a) Any evidence or
expert testimony presented by the state or the defendant on the subject of
eyewitness identification is admissible only subject to compliance with the
Texas Rules of Evidence. Except as provided by Subsection (c), evidence
[Evidence] of compliance with the model policy or any other policy adopted under this
article [or with the minimum requirements of this article] is not a
condition precedent to the admissibility of an out-of-court eyewitness
identification.
(b) Notwithstanding Article
38.23 as that article relates to a violation of a state statute and
except as provided by Subsection (c), a failure to conduct a photograph
or live lineup identification procedure in substantial compliance with the
model policy or any other policy
adopted under this article [or with the minimum requirements of this
article] does not bar the admission of eyewitness identification
testimony in the courts of this state.
(c) If a witness makes an
in-court identification of the accused, the eyewitness identification is
admissible into evidence against the accused only if the evidence is
accompanied by:
(1) the details of any
prior identification made of the accused by the witness, including the
manner in which that identification procedure was conducted; and
(2) evidence showing the
witness's confidence level as described by the witness at the time of the
prior identification.
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SECTION 7. Section 1,
Article 38.22, Code of Criminal Procedure, is amended.
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SECTION 5. Same as introduced
version.
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SECTION 8. Sections 3(a) and
(b), Article 38.22, Code of Criminal Procedure, are amended to read as
follows:
(a) Except as provided by
Section 9, no oral, sign language, or written statement made as a result of
a custodial interrogation of a person accused of a felony offense is
admissible against the accused in a criminal proceeding, and no [No]
oral or sign language statement made as a result of a custodial
interrogation of a person [of an] accused of any other
offense is [made as a result of custodial interrogation shall be]
admissible against the accused in a criminal proceeding, unless:
(1) an electronic recording
[, which may include motion picture, video tape, or other visual
recording,] is made of the custodial interrogation [statement];
(2) after being [prior
to the statement but during the recording the accused is] given the
warning described by Section 2(a), [in Subsection (a) of Section
2 above and] the accused knowingly, intelligently, and voluntarily
waives any rights set out in the warning;
(3) the recording device was
capable of making an accurate recording, the operator was competent, and
the recording is accurate and has not been altered;
(4) all voices on the
recording are identified; and
(5) not later than the 20th
day before the date of the proceeding, the attorney representing the
defendant is provided with a true, complete, and accurate copy of all
recordings of the defendant made under this article.
(b) Every electronic
recording of [any statement made by an accused during] a custodial
interrogation must be preserved until such time as the defendant's
conviction for any offense relating thereto is final, all direct appeals
therefrom are exhausted, or the prosecution of such offenses is barred by
law.
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SECTION 6. Sections 3(a) and
(b), Article 38.22, Code of Criminal Procedure, are amended to read as
follows:
(a) Except as provided by
Section 9, no oral, sign language, or written statement made as a result of
a custodial interrogation of a person accused of a felony offense is admissible
against the accused in a criminal proceeding, and no [No] oral
or sign language statement made as a result of a custodial interrogation
of a person [of an] accused of any other offense is [made
as a result of custodial interrogation shall be] admissible against the
accused in a criminal proceeding, unless:
(1) an electronic recording
[, which may include motion picture, video tape, or other visual
recording,] is made of the custodial interrogation [statement];
(2) after being [prior
to the statement but during the recording the accused is] given the
warning described by Section 2(a), [in Subsection (a) of Section
2 above and] the accused knowingly, intelligently, and voluntarily
waives any rights set out in the warning;
(3) the recording device was
capable of making an accurate recording, the operator was competent, and
the recording is accurate and has not been altered;
(4) all voices on the
recording are identified; and
(5) not later than the 20th
day before the date of the proceeding, the attorney representing the
defendant is provided with a true, complete, and accurate copy of all
recordings of the defendant made under this article.
(b) Every electronic
recording of [any statement made by an accused during] a custodial
interrogation of an accused
must be preserved until such time as the defendant's conviction for any
offense relating thereto is final, all direct appeals therefrom are
exhausted, or the prosecution of such offenses is barred by law.
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SECTION 9. Article 38.22,
Code of Criminal Procedure, is amended by adding Section 9 to read as
follows:
Sec. 9. An oral, sign
language, or written statement of an accused made as a result of a
custodial interrogation is admissible without an electronic recording
otherwise required by Section 3(a) if the attorney introducing the
statement shows good cause for the lack of the recording. For purposes of
this section, "good cause" includes:
(1) the accused refused
to respond to questioning or cooperate in a custodial interrogation of
which an electronic recording was made, provided that:
(A) a contemporaneous
recording of the refusal was made; or
(B) the peace officer or
agent of the law enforcement agency conducting the interrogation attempted,
in good faith, to record the accused's refusal but the accused was
unwilling to have the refusal recorded, and the peace officer or agent
contemporaneously, in writing, documented the refusal;
(2) the statement was not
made exclusively as the result of a custodial interrogation, including a
statement that was made spontaneously by the accused and not in response to
a question by a peace officer;
(3) the peace officer or
agent of the law enforcement agency conducting the interrogation attempted,
in good faith, to record the interrogation but the recording equipment did
not function, the officer or agent inadvertently operated the equipment
incorrectly, or the equipment malfunctioned or stopped operating without
the knowledge of the officer or agent;
(4) exigent public safety
concerns prevented or rendered infeasible the making of an electronic
recording of the custodial interrogation; or
(5) the peace officer or
agent of the law enforcement agency conducting the interrogation reasonably
believed at the time the interrogation began that the accused interrogated was not taken into custody
for or being interrogated concerning the commission of a felony offense.
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SECTION 7. Article 38.22,
Code of Criminal Procedure, is amended by adding Section 9 to read as
follows:
Sec. 9. An oral, sign
language, or written statement of an accused made as a result of a
custodial interrogation is admissible without an electronic recording
otherwise required by Section 3(a) if the attorney introducing the
statement shows good cause for the lack of the recording. For purposes of
this section, "good cause" includes:
(1) the accused refused
to respond to questioning or cooperate in a custodial interrogation of
which an electronic recording was made, provided that:
(A) a contemporaneous
recording of the refusal was made; or
(B) the peace officer or
agent of the law enforcement agency conducting the interrogation attempted,
in good faith, to record the accused's refusal but the accused was
unwilling to have the refusal recorded, and the peace officer or agent
contemporaneously, in writing, documented the refusal;
(2) the statement was not
made exclusively as the result of a custodial interrogation, including a
statement that was made spontaneously by the accused and not in response to
a question by a peace officer;
(3) the peace officer or
agent of the law enforcement agency conducting the interrogation attempted,
in good faith, to record the interrogation but the recording equipment did
not function, the officer or agent inadvertently operated the equipment
incorrectly, or the equipment malfunctioned or stopped operating without
the knowledge of the officer or agent;
(4) exigent public safety
concerns prevented or rendered infeasible the making of an electronic
recording of the custodial interrogation; or
(5) the peace officer or
agent of the law enforcement agency conducting the interrogation reasonably
believed at the time the interrogation began that the accused was not taken
into custody for or being interrogated concerning the commission of a
felony offense.
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SECTION 10. Article 39.14,
Code of Criminal Procedure, is amended.
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SECTION 8. Same as introduced
version.
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SECTION 11. Section
1701.253, Occupations Code, is amended.
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SECTION 9. Same as introduced
version.
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SECTION 12. STUDY REGARDING
USE OF DRUG FIELD TEST KITS. (a) The Texas Forensic Science Commission
shall conduct a study regarding the use of drug field test kits by law
enforcement agencies in this state. The commission shall:
(1) evaluate the quality,
accuracy, and reliability of drug field test kits;
(2) identify any common
problems with drug field test kits;
(3) evaluate the
availability and adequacy of training for law enforcement officers
regarding the use of drug field test kits and the interpretation of the
test results; and
(4) develop legislative
recommendations regarding the use of drug field test kits by law
enforcement agencies and regarding related training for law enforcement
officers.
(b) Not later than December
1, 2018, the Texas Forensic Science Commission shall submit to the
governor, the lieutenant governor, and each member of the legislature a
written report that summarizes the results of the study conducted under
this section and includes any legislative recommendations.
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SECTION 10. Same as
introduced version.
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SECTION 13. CRIME SCENE
INVESTIGATION STUDY. (a) The Texas Forensic Science Commission shall
conduct a study regarding the manner in which crime scene investigations
are conducted in this state. The commission shall:
(1) evaluate the standard
procedures used in processing a crime scene and evaluate the quality of
crime scene investigations;
(2) evaluate the
availability and adequacy of the training or continuing education provided
to crime scene investigators; and
(3) develop legislative
recommendations regarding improvements to crime scene investigation
procedures and training.
(b) Not later than December
1, 2018, the Texas Forensic Science Commission shall submit to the
governor, the lieutenant governor, and each member of the legislature a
written report that summarizes the results of the study conducted under
this section and includes any legislative recommendations.
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SECTION 11. Same as
introduced version.
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SECTION 14. Not later than
December 1, 2017, each attorney representing the state, as defined by
Article 2.023, Code of Criminal Procedure, as added by this Act, shall
adopt the written policy required by that article.
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No
equivalent provision.
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SECTION 15. Article 2.32 and
Section 9, Article 38.22, Code of Criminal Procedure, as added by this Act,
and Sections 1 and 3, Article 38.22, Code of Criminal Procedure, as amended
by this Act, apply to the use of a statement made as a result of a
custodial interrogation that occurs on or after the effective date of this
Act, regardless of whether the criminal offense giving rise to that
interrogation is committed before, on, or after that date.
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SECTION 12. Substantially
the same as introduced version.
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SECTION 16. Article
38.075(c), Code of Criminal Procedure, as added by this Act, applies to the
admissibility of evidence in a criminal proceeding that commences on or
after the effective date of this Act. The admissibility of evidence in a
criminal proceeding that commences before the effective date of this Act is
governed by the law in effect on the date the proceeding commenced, and the
former law is continued in effect for that purpose.
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SECTION 13. Same as
introduced version.
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SECTION 17. (a) Not later than October 1, 2017, each law
enforcement agency to which Article 38.20, Code of Criminal Procedure, as
amended by this Act, applies shall adopt the model policy as required by
that article.
(b)
Sections 5(a) and (b), Article 38.20, Code of Criminal Procedure, as
amended by this Act, apply only to a photograph or live lineup
identification procedure conducted on or after January 1, 2018, regardless of whether the offense to
which the procedure is related was committed before, on, or after January 1, 2018.
(c) Section 5(c), Article 38.20, Code of Criminal
Procedure, as added by this Act,
applies only to the trial of an offense with respect to which a prior
identification of the accused occurred on or after January 1, 2018, regardless of whether the offense that
is the subject of the trial was committed before, on, or after January 1, 2018.
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SECTION 14.
(a)
Section 3(d), Article 38.20, Code of Criminal Procedure, as added by this
Act, applies only to a photograph or live lineup identification
procedure conducted on or after the
effective date of this Act, regardless of whether the offense to
which the procedure is related was committed before, on, or after the effective date of this Act.
(b) Section 5, Article
38.20, Code of Criminal Procedure, as amended
by this Act, applies only to the trial of an offense with respect to which
a prior identification of the accused occurred on or after the effective date of this Act,
regardless of whether the offense that is the subject of the trial was
committed before, on, or after the
effective date of this Act.
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SECTION 18. Article
39.14(h-1), Code of Criminal Procedure, as added by this Act, applies to
the prosecution of an offense committed on or after the effective date of
this Act. The prosecution of an offense committed before the effective
date of this Act is governed by the law in effect on the date the offense
was committed, and the former law is continued in effect for that purpose.
For purposes of this section, an offense is committed before the effective
date of this Act if any element of the offense occurs before the effective
date.
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SECTION 15. Same as
introduced version.
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SECTION 19. Not later than
January 1, 2018, the Texas Commission on Law Enforcement shall establish
the eyewitness identification education and training program as required by
Section 1701.253(n), Occupations Code, as added by this Act.
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SECTION 16. Same as
introduced version.
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SECTION 20. This Act takes
effect September 1, 2017.
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SECTION 17. Same as
introduced version.
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